Who are you going to believe, me or your own eyes?
Chico Marx, Duck Soup
Opponents of parental choice in education have deployed a wide range of arguments at various times and places to persuade voters and legislators to reject school vouchers as a public school reform strategy. On February 20, 2002—with just 30 minutes of oral argument before the U.S. Supreme Court—they were forced to pick their best argument.
Reduced to its essence, that best argument was as surprising as it was simple: You may see parents choosing schools, but we see a direct transfer of funds from the state to religious schools.
The Cleveland Scholarship and Tutoring Program offers low-income Cleveland families a voucher worth up to $2,250 per child to use for tuition at secular or religious private schools, and at participating suburban public schools. Voucher schools receive public funds only after parents have chosen a school and signed over voucher funds to the school.
Robert H. Chanin, legal counsel for respondents Doris Simmons-Harris et al., explained the strict requirements the U.S. Supreme Court has established for determining whether a transfer of public money from the state to a religious institution is unconstitutional.
“If public money that is reasonably attributable to the State is used to pay for a religious education, it violates the Constitution,” he said. The only way the money is not attributable to the state, he continued, is if there is some “intervening party” to “break the circuit” between the state and the religious institution.
If there is “an independent party with decision-making” authority standing between the state and the schools, then the money is not going to the religious institution “by virtue of a State action or a State decision.” A transfer under such circumstances does not violate the Constitution.
But, Chanin contended, in the Cleveland case, “[t]here is no intervening party with decision-making [authority].” The parents, he argued, “play a ritualistic role in the transmission process” because the lack of voucher-accepting secular schools in Cleveland means 99 of 100 choices would be to send the child to a religious school. In effect, the only choice under these circumstances is “to stay in the public schools or go into a religious school.”
Chanin, who also is general counsel for the nation’s largest teacher union, the National Education Association, granted it is constitutional for money to go to nonsectarian schools but was non-committal when pressed by the Court to say what mix of religious and secular schools he would regard as constitutional.
Finally, he was asked to respond to the following situation: What if the money is given to the individuals, and the individuals had an equal choice between church-related schools and private ones to break the circuit?
“My response to that is, if this Court concluded that the words, significant amount, huge array of choices, if the Court concluded, as an abstract proposition, that those standards were met on 50-50, I would be most unhappy, but I would conclude that the program was constitutional,” Chanin admitted [emphasis added].
“[G]ive me the rationale,” asked the Court.
“We need to break the circuit,” said Chanin.
“[The petitioners] say it does, so why doesn’t it?” asked the Court.
“I’d say, I don’t accept what they tell me,” insisted Chanin [emphasis added].
Chanin’s insistence that the parents of Cleveland’s voucher children play no role in their choice of schools gave him a basis to pursue several arguments that otherwise would not be germane. Most importantly, by describing the Cleveland voucher program as involving a direct transfer of funds from the state to religious schools, he was able to suggest that the Court’s frame of reference in the case was Nyquist rather than Mueller. In the Nyquist case, the Court struck down a program to provide direct aid to parochial schools, while in Mueller the Court upheld a tuition tax deduction program where 96 percent of the benefits accrued to religious schools.
Also, by using Nyquist as a frame of reference, Chanin was able to provide a plausible response to persistent questions from different members of the Court about other school choices available to Cleveland parents.
“Why do you not put the community schools and the magnet schools in the universe of choices?” Justice Kennedy asked. “That’s the problem I’m having with your arguments. You say the figures are skewed, but they’re skewed only because you will not look at those choices. Why?”
Chanin responded that the Court, in its Nyquist ruling on direct aid to religious schools, had provided a rationale for not going beyond the consideration of the program itself. To do so would allow a program “to do precisely what the Establishment Clause prohibits, which is to use tuition grants to pay totally for private, sectarian religious education,” explained Chanin, adding, “the Court said.”
“Ohio Did it Right”
Judith L. French, assistant attorney general for the State of Ohio, responded to Chanin’s arguments in the four minutes she had reserved for rebuttal. The respondents, she commented, seemed to want the state to exclude the religious schools as an option—despite the Court’s directive that the state “can neither inhibit nor advance religion.”
“[I]t appears that respondents have either ignored or do not accept the last 20 years or so of this Court’s jurisprudence,” said French, noting the Court had expressly rejected each of the legal principles respondents had raised.
“Under this Court’s decisions, especially Mueller, Witters, and Zobrest, and in light of this Court’s teachings, most recently in Agostini and Mitchell, the Ohio program is constitutional because it offers a neutral program that offers true private choice to parents,” she had pointed out in her opening statement.
Faced by an educational crisis with competing and conflicting considerations, and needing to solve it quickly, it seems that “Ohio did it right,” said French. “It didn’t take too much money away from the public schools, but gave enough for a limited program that is targeted to the most needy, the poorest of the poor, the low-income students who would not otherwise have choice.”
With that, she called on the Court to overturn the decision of the Sixth Circuit Court of Appeals and uphold the Cleveland Scholarship and Tutoring Program.
For more information …
A transcript of the oral arguments made before the United States Supreme Court in the case of Zelman v. Simmons-Harris on February 20, 2002, is available at the Children First America Web site at www.childrenfirstamerica.org/zelman.pdf.